News and analysis of critical issues in homeland security

April 19, 2013

In addition to the April 19 bombing of the Murrah Federal Building and all the gruesome anniversaries noted in my Thursday post, April 15 also marks the sinking of the Titanic and the beginning of the 1927 Mississippi River flood, the worst experience of flooding, so far, in American history. Natural, accidental, or intentional risks abound. What is the role of homeland security? What’s on your mind?

So perhaps the Ides of April should become a new warning period for humanity?

The EPA has a major role in HS IMO! While before 9/11/01 EPA did not even have any original classification authority and subsequent now has original classification authority up to the SECRET level, EPA was never [erroneously IMO] viewed as part of the National Security apparatus.

The explosion and fatalities in WEST, TX should remind all of the potential targeting of chemical production and storage facilities. DHS has some authority to regulate those but it is a bare minimus effort and would be of interest to know if the recent event involved violation of DHS regulations. Also while fought bitterly by EPA as unnecessary and redundant the CHEMICAL HAZARDS SAFETY BOARD has done some useful post event reporting and lessons learned on various accidents/incidents/events. The NATIONAL TRANSPORTATION SAFETY BOARD is the original organization doing this kind of investigation and reporting.

And as for the accident this time not sure if the President will be asked for a disaster or emergency declaration. Would or could a Bhopal like event be declared? Maybe since fire, flood, or explosion listed categories under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

What might be of interest is how DHS and FEMA relate to the activities of EPA, and the CHSB and NTSB and other investigatory organizations? Do they or should they have more or less formal liaison both ways? Even OSHA might be included. Why OSHA? Well conceptually no FEMA official or employee should ever be sent into a contaminated or dangerous area? And if that did happen under OSHA standards it is a felony for any organization to send untrained, unequipped, and unprepared personnel into a hazardous area. Officials at Aberdeen Proving Ground, MD, were in fact convicted of felonies for activities in the 1980′s.

So its a complicated world and would be of interest to discuss these complex organizational relationships.

Also note that the Robert T. Stafford Act currently contains NO mandate for the President or his/her delegate to promote/enhance/protect Public Health and Safety during operations under any declaration. And no mandate to promote/enhance/protect the environment while preparing, planning, protecting, mitigiating, responding to, or recovery from covered incidents/events while conducting programs, functions, and activities under a declaration of disaster or emergency or while performing a MISSION Assignment. No are the STATES as grantees.

DHS does house the US Coast Guard one of the co-chairs of the National Contingency Plan published at 40 CFR part 300 and FEMA sits as a member of the National Response Team policy group for that plan. This still did not trigger a declaration under the Stafford Act for the Exxon Valdez [1989] or the Bp predesscurh

When I first heard a fertilizer plant near Waco had blown up on the eve of the Waco Siege anniversary my imagination made the quick leap from accidental to intentional. Such an attack is certainly not inconceivable. There are several places in the United States where residential and commercial tracts have grown up around what had once been isolated agricultural chemical operations. Whether the threat is accidental or intentional, innate vulnerability multiplies the risk.

A few minutes ago I was on a teleconference where someone — very hesitantly — raised the possibility that “locking down” Boston is an over-reaction that amplifies the “success” of the original attack. He was shut-down in a way that will not encourage him or others to raise a similar concern any time soon.

In my judgment right-now at my distance (physically and otherwise) I’m not going to second-guess tactical decisions being made in real-time. But however this phase ends, it is important that we be deliberate, open, and self-critical in our after-action analysis… especially in terms of how our choices influence the choices of future adversaries.

Bill — is your position that during a chaotic situation our actions (leaders and citizens) should be guided primarily by the law? I think my position is that actions should be guided by what seems like the best choice at the time, with lots of feedback loops just to make sure we are not doing more harm than good.

I obviously don’t know how Bill will respond, but I will offer some thoughts.

While I have not had time to confirm, it is my understanding that the Boston area shelter-in-place (or “lock-down”) order is actually a leadership request… reinforced by the shut-down of mass transit, schools and a stern police presence. While downtown Boston is mostly shut-down there are people walking the streets and they are not being arrested.

More pertinent to your question: I would offer that in addition to feedback loops our decision-making benefits from pre-decision inputs. The law is an important one. In many cases, at least in the United States, the law is often a restraining input. Our laws generally discourage over-reach. In chaotic/complex situations there can be a strong temptation to take action that is the cause of further complexity. Attention to the law may well mitigate this tendency.

I understand your point to be there are a wide array of goals that may not be positively supported by our laws-of-restraint and leadership and others may, in crisis, feel compelled to proceed in a way that does not conform with the letter-of-the-law. I do not disagree, but I would be even more supportive of the choice if there is a clear demonstration they are aware of the principles set out in the law and it is their good faith intent to preserve those principles in the decision they undertake.

While it may come as a shock to many the Judiciary almost always defers to the Executive whether federal or STATE or local in times of emergency. In fact many states have statutes for emergencies based on a model issued by the Federal Civil Defense Adminstration in the 1950s. These should be updated in a thoughtful manner. All I was indicating is that lockdowns are not novel and could have received consideration long before need in many cases.

What I really am suggesting is that to the extent possible planning for various emergency and disaster situations is not rocket science but someone has to do the work.

When I was in the independent FEMA’s OGC we never exceed 40 FTEs and over 1/2 support staff and paralegals. The DHS FEMA has over 150 in its OCC.

When new attorneys arrived I often briefed them too much to do by far and you can build a national reputation based on your interest in one of the many issues a priority in our office or that should be a priority.

Like Chris argues the Public Safety arena can be chaotic and certainly very complex. Perhaps legal challenges will arise over the Boston lockdown perhaps not. So far seems voluntary not officially directed.

IMO legal challenges will not succeed. But as always important to understand that our Constitution cannoldd

” …. lockdowns are not novel and could have received consideration long before need in many cases.

I argued for such contingency planning and was shot down. RESPONSE: we will not alarm the public unnecessarily. We will talk about this issue behind closed doors. Mostly excluded other then executive level officials. Midlevel managers (me) were for the most part excluded.

When I first heard a fertilizer plant near Waco had blown up on the eve of the Waco Siege anniversary my imagination made the quick leap from accidental to intentional.

Many of us gravitated in that direction, as was prudent until more information became available. Frankly, I was concerned that the prosecutor killings in TX, the marathon bombing, and the ricin mailings might constitute a opening salvo by some confederation of domestic reactionaries. Turns out these events were variously accidents, acts of lone nutters, and the vicious conspiracy of two radicalized young men. I’m glad it was not a concerted effort, but man this was one crappy week. Regardless the causes of or motivations for this week’s mayhem the importance of a well drilled All Hazards Response has been driven home yet again. Hats off to law enforcement, fire fighters, paramedics, and thousands of citizen volunteers for many jobs well done, some at great personal cost. Makes me proud to be an American.